With its massive, daily interplay of ideas and information, the Internet always seemed overdue for a pitched battle over free speech. That fight may have arrived. Its combatants are an unlikely duo: the Cayman Islands branch of a Swiss bank, and a shadowy whistle-blowing Web site dedicated to exposing what it believes to be corporate and government fraud. And, even though both sides have little prominence, their legal warfare is already casting a deep shadow on what kinds of content have constitutional and legal protection online — and what can get you in a lot trouble.
The Web site, Wikileaks, is a venue for anonymous whistle-blowers to post documents alleging misbehavior without fear of recrimination. Wikileaks claims to have been founded by "Chinese dissidents, journalists, mathematicians and start-up company technologists" hailing from around the world. Since debuting last year, the site has earned notoriety for leaking documents said to reveal the code of conduct for American troops serving in Iraq and the operations protocol for the U.S. military detention center in Guantanamo Bay, Cuba. It reveled in its role as the Net's self-styled ethical gadfly, trumpeting a January 2007 ban by the Chinese government as "a sign that we can do good work."
Despite its relative obscurity, Wikileaks is embroiled in a legal dispute that experts say could shape the landscape for free speech rights in Cyberspace. On Feb. 6, the Swiss-based Julius Baer Bank and Trust filed suit in U.S. District Court in San Francisco, claiming that an ex-employee provided stolen documents to the Web site. Wikileaks says the documents detail the bank's methods of money laundering and tax evasion. Last Friday, at the bank's request, Judge Jeffrey White issued an injunction shuttering the site and barring it from transferring its contents to another domain. An upcoming hearing in the case is scheduled for Feb. 29. (White was also the judge who, in 2006, ordered two reporters of the San Francisco Chronicle to start serving prison time for refusing to divulge their sources in the BALCO steroid scandal. They avoided jail only because the leaker went public.)
Internet experts have denounced the ruling as an unconstitutional "prior restraint," the legal term for limiting freedom of the press by preventing publication. The Wikileaks case is "prior restraint of the most extreme nature," says David Ardia, director of the Citizen Media Law Project at Harvard Law School, because the ruling suppressed not only the document in question, but what Wikileaks says is a trove of more than 1.2 million others. "There is a strong presumption under U.S. constitutional law that any prior restraint is unconstitutional," Ardia told TIME. For that reason, judges tend to issue narrower checks on publication. This particular ruling, he says, is "so over-broad it struck me as beyond belief."
Yet even if the injunction is vacated on appeal, Ardia warns the case could deter would-be Internet publishers who fear being subjected to similar lawsuits. In legal circles, this is known as a "chilling effect." If they are emboldened by the Wikileaks case, corporations could go after other amateur publishing sites showcasing material that portrays them in a negative light. Ardia suggested YouTube could be a potential target, while Jack Balkin, director of Yale Law School's Information Society Project, said companies could attempt to remove offending material from search engines like Google. The upshot, Ardia says, is Web users could "have access to less information. They have less of an opportunity to understand their world."
Balkin calls the skirmish between Julius Baer and Wikileaks a "kind of high-tech whack-a-mole, in which you have an arms race between people trying to find access to publication and people trying to shut it down." He predicts Wikileaks will sidestep efforts to suppress its documents, noting that despite the injunction, the site's contents could be viewed at "mirror" locations registered around the world — including addresses in Belgium, the Christmas Islands and Germany — and at its numerical IP address. But even if Wikileaks is savvy enough to stay a step ahead of its pursuers, "the average citizen may not be able to figure out" how to access the materials, Balkin says. Adds Ardia: "Society suffers as a whole when the landscape for speech is curtailed like this."
For its part, Wikileaks issued a statement Monday saying that while it anticipated having to dodge suppression attempts by the Chinese government and the "Thai military junta," it "never expected to be using [its] alternative servers to deal with censorship attacks from, of all places, the United States."